U.S. v. Wilkins

• Citation: 659 F.2d 769
• Decision Date: 11 September 1981
• Docket Number: 80-1270 and 80-1409,Nos. 80-1269,s. 80-1269
• Parties: 9 Fed. R. Evid. Serv. 591 UNITED STATES of America, Plaintiff-Appellee, v. Luther WILKINS, Morris Lewis, and Sam Gates, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 769

659 F.2d 769

9 Fed. R. Evid. Serv. 591

UNITED STATES of America, Plaintiff-Appellee, v. Luther WILKINS, Morris Lewis, and Sam Gates, Jr. Defendants-Appellants.

Nos. 80-1269, 80-1270 and 80-1409.

United States Court of Appeals Seventh Circuit.

Argued May 28, 1981.

Decided Sept. 11, 1981.

Peter R. Meyers, Patrick G. Reardon, Jeffrey S. Blumenthal, Chicago, Ill., for defendants-appellants.

Daniel M. Purdom, Asst. U. S. Atty., Chicago, Ill., Robert Walter Tarun, U.S. Atty., Dept. of Justice, Chicago, Ill., of Coun for plaintiff-appellee.

Before SWYGERT, Senior Circuit Judge, FAIRCHILD, Circuit Judge, and THOMAS ^*, Senior District Judge.

SWYGERT, Senior Circuit Judge.

This is an appeal from the convictions of three defendants for bank robbery. Because each defendant has raised numerous grounds for reversal pertaining only to him, we will treat each defendant separately. ¹

I

The evidence presented at trial established that on October 15, 1979, Morris Lewis and Curtis Lyons ² entered the Crawford Savings and Loan Association in South Holland, Illinois. Sam Gates stood at the door of the bank as a lookout. All three men were armed and wore ski masks and gloves. Lewis threatened the tellers, and ordered them to put all their money in the bag he was carrying. The tellers gave him $7,483.98, including $200 in prerecorded bills. Luther Wilkins was waiting in a stolen car outside the bank. Lewis, Lyons, and Gates left the bank and got into the car, and Wilkins drove them away.

A South Holland police officer stopped the car four blocks from the bank. Lewis and Lyons got out of the car, fired shots at the policeman, and fled. Lewis and a police officer were wounded in the exchange of gunfire. Wilkins and Gates were arrested at the car, and the bag containing $7,483.98 and two guns were found inside.

At a suppression hearing, defendant Wilkins testified that during his interrogation by two FBI agents at the South Holland police station, one of the men held a gun to Wilkins's head and said, "One funny move and I'll blow your head off" and, "Before you say anything, was Morris Lewis out there?". Wilkins nodded in response, and then told the agents that Lewis owed him some money, that he met Lewis that morning to collect the debt, and that he thought Lewis was going to sell some cocaine to raise the money. ³ The district court held that the statement must be suppressed because it was obtained by force.

Several hours later, two other FBI agents (not the two men who had previously interrogated Wilkins) gave Wilkins an advice of rights form. Wilkins stated that he understood his rights and wished to waive them, and then signed the form. The agents drove Wilkins to Chicago, and during the trip he repeated in substance the statement he had given to the first two agents in the police station. As to the second statement, the district court found that the two agents in the car had nothing to do with the first interrogation so Wilkins had no reason to fear them, and that Wilkins understood the advice of rights form and signed it. The court concluded that the second statement was made voluntarily and thus denied the motion to suppress.

Approximately one hour after the robbery on October 15, 1979, Morris Lewis entered a hospital in Merrillville, Indiana for treatment of a gunshot wound. He registered at the hospital as Andrew Watkins, and told hospital personnel and the Merrillville police that he had been wounded earlier that day in Merrillville.

At the suppression hearing, FBI agent Thomas Allison testified that on October 16, 1979, he read an article in the Gary Evening Tribune about a man named "Andrew Watkins" who was admitted to the Broadway Methodist Hospital in Merrillville. The agent knew that Andrew Watkins was the half-brother of Lewis and that an arrest warrant had been issued for Lewis in connection with the bank robbery in South Holland.

According to the findings of the district court, at 9:30 p.m. on October 16, Agent Allison arrested Lewis at the hospital. Because Lewis was ambulatory, Allison handcuffed him to the bed pursuant to hospital regulations. Allison read Lewis his rights but did not question him at that time. Then Allison and another agent who had accompanied him left Lewis's room, leaving Lewis in the custody of a hospital security officer.

At about 12:30 a.m. on October 17, the two agents returned to Lewis's hospital room. At that time Lewis read an advice of rights form and signed it, indicating that he wished to waive his rights. The agents then began their interview with Lewis. During the interview, he was alert and sitting up in bed. He was asked several times if he was uncomfortable, and he replied that he was not. He indicated that he wanted to talk to the agents. Although the district court noted that he was under medication, it found that he understood the conversation, and that his statements were made intelligently and voluntarily. During the interview, Lewis told Agent Allison that he robbed the bank in South Holland and that he had been wounded while he was escaping from police. Approximately one hour later, a nurse asked the agents to terminate the interview so that the patient could sleep. The agents left Lewis's room at that time.

II

Defendant Wilkins raises a number of issues. First, he contends that the trial court erred in refusing to suppress his second statement to FBI agents. The prosecution did not introduce the second statement into evidence either in its case-in-chief or in rebuttal. Wilkins, however, asserts that his right to testify in his own behalf was infringed because he knew that if he did take the stand, the second statement might be introduced for impeachment purposes.

"It is well settled that ... 'the appellant has both the burden of proving error and of showing that he was prejudiced thereby.' " United States v. Menk, 406 F.2d 124, 126 (7th Cir. 1968), cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969) (quoting Sawyer v. Barczak, 229 F.2d 805, 809 (7th Cir. 1956)). This burden must " 'be sustained ... not as a matter of speculation, but as a demonstrable reality.' " Buchalter v. New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 1131, 87 L.Ed. 1492 (1943) (emphasis added) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). Wilkins's contention that he was deterred from testifying by the possibility that the statement would be used to impeach him is too speculative to allow us to conclude that he was prejudiced by the court's failure to suppress the statement. ⁴ We do not know whether Wilkins would have chosen to testify in his own behalf had the district court ruled otherwise. We do not know whether his testimony at trial would have been inconsistent with the statement he made to the FBI agents, and we do not know whether the state would have introduced the earlier statements into evidence.

Wilkins also raises the issue of the sufficiency of the evidence used to convict him. He advances two arguments. First, he contends that, because there was no evidence that he ever entered the bank, he cannot be convicted as a principal in the crime of bank robbery. Second, he alleges that the Government failed to establish that he was a knowing and willing participant as required by United States v. Mariani, 539 F.2d 915 (2d Cir. 1976).

Wilkins is mistaken in his first contention with respect to the substantive law. The getaway is part of the robbery; therefore, the driver of the getaway car is a principal in the crime of robbery and not a mere accomplice after the fact. United States v. Willis, 559 F.2d 443, 444 (5th Cir. 1977). Defendant, if he knowingly participated in the robbery as the getaway driver, is guilty as a principal.

With respect to whether Wilkins knowingly participated in the robbery as the getaway driver, "the verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1943). We find that there was sufficient evidence on which the jury could have based its guilty verdict. Wilkins waited for his codefendants in the car outside the bank, then drove them from the scene of the crime. The stolen money was in a bag on the back seat and a gun was found on the front seat next to Wilkins. Police officers testified that Wilkins fired at them after the occupants of the car were ordered to come out. On the basis of this evidence, a jury could reasonably infer that Wilkins knowingly and intentionally participated in the robbery.

Wilkins's final contention is that his sentence was cruel and unusual in violation of the Eighth Amendment. Specifically, he contends that the trial judge failed to take into account his lack of a criminal record as well as his family, church, and community involvement. A trial judge, however, has wide discretion in sentencing and his exercise of that discretion will not be disturbed absent a showing of gross abuse. United States v. Willard, 445 F.2d 814, 815 (7th Cir. 1971). The weight to be given various factors is within the discretion of the sentencing court. United States v. Main, 598 F.2d 1086, 1094 (7th Cir. 1979). The trial judge in determining Wilkins's sentence apparently did consider mitigating factors. He received a fifteen-year sentence where the maximum was twenty-five years, plus a $10,000 fine. 18 U.S.C. § 2113(a), (d). Both of his codefendants received longer sentences. In addition, he was sentenced under 18 U.S.C. § 4205(b)(2), allowing him to be considered for parole immediately without serving the mandatory one-third of the sentence. Consequently, we find no abuse of discretion.

III

Defendant Sam Gates contends that the prosecutor in his closing argument improperly drew attention to Gates's failure to testify, and thus compromised defendant's Fifth Amendment rights to such an extent...